Chapter 3

It is not, however, in the case of new Churches that difficulties arise, except when these new Churches take the place of old ones. Then it may be that the old abuses of faculty pews and of supposed exclusive rights in certain holdings have to be contended with. Cases have occurred where supposed usurpers have been kept out of faculty pews when there is plenty of room, or of locking up the pew when the so-called owner is absent. Faculty pews are an anomaly, and I wish there were none, but if the title to them can be proved they are legal and must be dealt with accordingly. I do not imagine that any new faculties are now issued by the Courts, but in the rebuilding of old Churches the dealing with existing faculties requires very tender handling. It were heartily to be wished that all legal holders of faculty pews would consent to waive their rights for the future, for the sake of peace and the avoidance of jealousies. Of course in such a case the Churchwardens would feel it an obligation which it would be their pleasure to fulfil, to provide those who give up their rights with such accommodation as their families may require. But if, as is sometimes the case, they stand exclusively upon their rights, Churchwardens have no power to abrogate the law, and can only look forward to the future with hope, either that a short Act of Parliament may be passed enacting that at the death of the present owner of a faculty pew that particular faculty should cease, and determine, only excepting (unless with the consent of the owner) cases in which under the Church Building Acts the faculty was issued in consequence of money paid down for the building of the Church with the understanding that the faculty would be granted in consequence: or if this be not done that in the lapse of time some holder of the faculty may regard the matter from an unselfish standpoint and voluntarily resign his rights.

Meanwhile it is well to remember with regard to existing faculty pews that:--

1. The form of appropriation in old faculties varies considerably. In order to ascertain the wording of a particular faculty application should be made to the Diocesan Registrar.

2. With regard to pews annexed by prescription to certain messuages the right to the pew passes with the messuage, the tenant of which for the time being has also _de jure_ for the time being the prescriptive right to the pew. {46a}

3. No faculty can be legally granted entitling a non-parishioner to a seat in the body of the Church. {46b} Any faculty so worded as to allow this is void as far as that particular point is concerned.

4. No faculty gives power either to the owners and occupiers of the house in respect of which the faculty has been issued to let such seats apart from the houses, or to appropriate them to other persons.

No Churchwarden should ever allow a parishioner to repair the pew which he may temporarily occupy. Such an act, if done with the sanction of the Churchwardens, may in after years seem to give a claim to proprietorship in that particular pew. Too great care cannot be taken to avoid any future misunderstanding.

The matter is too often looked upon as a party question. The great Duke of Wellington was no party man, and I cannot forbear from quoting in connection with this subject an extract from a letter written to my father, the Bishop of Winchester, in 1836, in response to an application to him to support a Diocesan Church Building Society, which was then in course of formation. The Duke writes concerning providing accommodation in country Churches as follows:--

"It has frequently occurred to me that when Church room is required the first thing to do is to prevail upon individuals to give up the pews which they cannot use . . . If more space was required I should propose that all pews should be given up, that the whole space of the Church should be laid open for the accommodation of all the parishioners indiscriminately, separate chairs of a cheap description being provided for their accommodation. This being done, and space being still required for the accommodation of the parishioners in their attendance upon Divine Service, I would propose to consider the mode of enlarging the Church, or if that could not be effected, of building another Church or Chapel. It must never be forgotten that another Church or Chapel would require the attendance of another Clergyman, who must live and must be remunerated. He can be remunerated only by the sale or hire of the pews and places in the new place of Divine worship; and here again would commence the evil which has in my opinion been the most efficient cause of the non-attendance at Divine worship of the lower classes of the people of this country." {48}

Surely these words, which (bearing in mind who was the writer of them) cannot be supposed to have been the offspring of heated ecclesiastical partisanship, are well worthy of consideration, even after the lapse of more than half a century. It does, indeed, seem sad that parochial difficulties should so often arise in respect of Church sittings. There is no part of the parochial machinery which more requires the free application of the oil of common sense--Christian charity and a true spirit of forbearing courtesy in order to avoid friction. Blessed are the peacemakers.

Difficulties not unfrequently arise in connection with the conveyance of buildings or of land to be used not only for public worship, but also for meetings, classes, etc. The subject was under the consideration of the Committee of the Incorporated Church Building Society in 1889, and with the co-operation of their legal advisers a statement was issued clearly pointing out the advantages and the disadvantages of the several modes of procedure possible. With the permission of the Church Building Society's Committee, I add in Appendix X a summary of the conveniences and inconveniences of the several Acts. The Minister and Churchwardens are not a corporation with perpetual succession under the common law, though often supposed so to be because they are specially so made for the purpose of carrying out the Schools Sites' Acts. The advisers of the Church Building Society on the whole recommend that a conveyance should be made to individual Trustees, "which will be good according to the ordinary law of mortmain as a charitable conveyance, the only real objection to this being that if the conveyance be a gift, without price paid, it will fail if the grantor dies within twelve months." A form of such conveyance has been settled for the parish of Staines. This form has been printed by the Church Building Society, but they recommend that it should be amended by adding a power, to be used if a consecrated Church is eventually built on the land, to revoke the trusts and convey the land and building for the purpose of a Church to any person or body lawfully authorised to accept such conveyance. If the Staines form is not adopted, it is on the whole recommended that action should be taken under 43 Geo. III, cap. 108. {50}

I pass on to another point. On a vacancy occurring in an incumbency either through the resignation or death of the Incumbent, certain duties of considerable importance devolve upon the Churchwardens. During the vacancy they are in charge of the temporalities of the incumbency, and therefore it is necessary that a sequestration of the living should be issued, empowering them to do such things as are necessary in connection therewith. Application should at once be made with reference to this to the Bishop's Registrar. It is then their duty to see that Church property, whether in connection with the fabric, endowment, or glebe, suffers no loss during the vacancy. They have also to provide for the services in Church and any occasional duty which may arise. A newly-appointed Incumbent does not become legally responsible for this until he has been instituted, or collated, as the case may be. But it would be well always if the Churchwardens, immediately on an appointment being notified to them, should communicate with the Incumbent-elect and consult with him as to the best mode of providing for the duty. It is well that Churchwardens should know that the license of a Curate does not lapse in consequence of the death of the Incumbent. Six weeks' notice within six months after institution is legally necessary if a change is to be made. {52a} The widow of a deceased Incumbent has a right to remain in the parsonage house for two calendar months subsequent to the death of her husband. {52b} All these points should, if possible, be made a matter of friendly arrangement, but the actual law of the case is as I have stated it.

There is one question sometimes asked by Churchwardens to which it may be well to refer. Have they the custody of the keys of the Church, the appointment of the organist, control over the Church music, and over the ringing of the Church bells?

With regard to the keys of the Church. It is the undoubted fact that the church is the freehold of the Incumbent, subject, of course, to the right of the parishioners to be present in it at all legal Services of a religious character. It may be often convenient that the Churchwardens should have a duplicate key of the Church, in order that they may be able to fulfil their duties in connection with the survey of the fabric, or for other causes, but this must be clearly understood to be subject to the will of the Incumbent.

The same with regard to the musical portion of the Service or appointment of the organist. Lord Stowell's words are:--

"The Minister has the right of directing the Service, _e.g._, when the organ shall and shall not play, and when children shall chaunt and shall not chaunt, though the organist is paid and the children managed by the Churchwardens." {53}

Nothing can be clearer or stronger than this.

So too with regard to the Church bells. The Churchwardens have the custody of the bells, and the bell ropes are in most cases Church property placed under their charge, but the law with reference to the ringing of the bells is undoubted; that for any occasion except that of Divine Service the permission of the Incumbent is absolutely necessary for the ringing of the bells. Without that permission they cannot be rung. {54}

There is one further point on which a question sometimes arises in connection with offertories and collections in church. With reference to offertories gathered at the time of the celebration of Holy Communion at an ordinary Service the Churchwardens and Incumbent are expressly directed by the rubric to dispose of them to such pious and charitable uses as they shall think fit, wherein if they disagree it shall be disposed of as the Ordinary shall appoint. The Incumbent has the responsibility of arranging with reference to collections made not in connection with the celebration of the Holy Communion. Incumbents are thankful when the Churchwardens help them with their advice as to what objects shall be brought before the congregation. In the case of all collections, for whatsoever purpose they be made, it is most desirable for the avoiding of any possible difficulty that a written statement should be put upon the Church door on the Sunday after, stating the amount of the collections made on the previous Sunday. If the collection be made for any charitable or missionary society the official receipt for the money collected and sent should also be affixed to the church door.

This leads me to mention another point of considerable importance. In these days of monetary difficulties and agricultural depression the frequency of offertories is often a question difficult of solution. It is perhaps still more difficult wisely to decide the objects for which the offertory shall be made. With regard to local objects there can of course be no question. We recognise in these days the power of the pence, and no one grumbles at the collection of money for purely parochial purposes. But it is when our people are asked for money for objects outside the parish that the difficulty really arises. But it ought to be remembered that we do not lead individual isolated lives apart from our fellows. The parish is not the centre of the universe. The tendency of the uneducated mind is to isolate itself from the interests of others, and to look at all matters from a purely selfish point of view. The parish is an accidental collection of individual souls in a particular diocese. The diocese is an aggregation of separate parishes scattered through an assigned area. The members of the Church in a particular parish and diocese are members of the Holy Catholic Church, which by its very nomenclature abrogates individual isolation. It follows, therefore, that parochial interests must not absorb attention to the exclusion of larger and less personal objects. The Body is one, and the members of the Body should work together for the good of the whole. Corporate as well as individual life is a reality, and this fact must not be lost sight of in connection with our offertories. I venture to say that a parish which confines its offertories to local and parochial purposes will lose by the very contraction of its sympathies. The duty that lies upon us as trustees of God's gifts to utilize them for His honour and glory, should be pointed out. The privilege of being allowed to help with our substance, those who stand in need of our assistance, should be duly urged; and the warmth which is thus kindled in the heart towards others will react in infusing fresh life into the support of parochial institutions. The habit of giving grows by use. The blood must not stagnate round the heart, or the extremities will soon suffer. Your fingers die because the action of the heart is weak. The promise is that "He that watereth others shall be watered also himself."

I have no intention of entering into many details in this matter, but I cannot be wrong in enforcing this principle. Church work at home and abroad, as distinct from parochial organizations, should be systematically brought before all congregations however small: Church work at home, including home missions; and Church work abroad, including foreign missionary societies.

Let me give very emphatically this caution. If aggrieved parishioners come to a Churchwarden and endeavour to persuade him to join a cave of Adullam, he should be careful not to be rash or hasty in his answer. He must not take all for granted which heated partisans may allege, but remember there are always two sides to every question. We are none of us infallible in our judgment, and many matters after consultation with others assume a very different aspect to that which at first sight they seemed to present. If difficulties arise he must not threaten. It does more harm than good. Let him try what conciliation will do. Let him see whether common ground of action cannot be found. Certainly it is unwise to rush into print; it only tends to inflame the smouldering embers of a quarrel which, but for the unfortunate publicity given to it, might soon have come to a happy termination.

Churchwardens _must_ work with the Clergy and the Clergy with the Churchwardens if they are to be a blessing in the parish in which they are elected to serve. They have not been brought by chance into connection with the Incumbent of their parish, for chance is not a word to be found in the Christian's dictionary.

With regard to all these cases, if difficulties arise in connection with any of them it is seldom, if ever, wise to stand out for strict law. If the matter cannot be settled amicably the interposition of the Rural Dean or Archdeacon, or, as a final resort, the Bishop, will often smooth a wrinkled brow and restore to a parish the inestimable blessing of peace.

It is because I feel the great importance and usefulness of the office of a Churchwarden, that I have ventured, in accordance with the wish so kindly expressed by those to whom the foregoing words were in substance addressed, to publish them in this more permanent form; and I have only to express the hope that they may be found useful in pointing out to Churchwardens that their office, far from being a sinecure, may, if faithfully used, tend very directly to the furtherance of our common Master's cause, and that work done by them in a spirit of faith and love will not lose its reward in the great Hereafter.

GEORGE HENRY GUILDFORD.

THE CLOSE, WINCHESTER, _August_, _1897_.

APPENDIX I.

QUEEN'S BENCH DIVISION. (_Before_ LORD COLERIDGE _and_ MR. JUSTICE MATHEW.) THE QUEEN V. HARDING, VICAR OF BECKENHAM.

This case raised the question whether, in new parishes under the Church Building Acts, it is necessary that Churchwardens shall be residents in the parish or whether it is enough that they are rated occupiers. The question had arisen under these circumstances. There was a new Church built and consecrated in Beckenham, Kent, in 1875, and by an Order in Council in 1878 a district was constituted and annexed to it under the Church Building Act, 59 Geo. III, cap. 134, sec. 16, constituting a "district chapelry." In 1885, on the death of the Incumbent, all the fees of the district became due and payable to the Minister of the new Church, and then, by the operation of Lord Blandford's Act (19 and 20 Vict., cap. 104), the district became a separate parish for ecclesiastical purposes; and the question was what effect this had as to the election of Churchwardens. Under 8 and 9 Vict., cap. 70, sec. 6, it was provided that "two fit and proper persons should be annually elected Churchwardens, they residing within the district;" and if that statute applied, it was admitted the Churchwardens must be resident. But it was disputed whether it did apply, or whether at common law Churchwardens must be resident. In Lord Blandford's Act it is provided, in sec. 14, that wherever and as soon as banns of marriage are authorised to be published in a consecrated Church or Chapel to which a district belongs, and the Incumbent is by such authority entitled, for his own benefit, to the fees arising from the performance of such services, then such district shall become and be a separate parish for ecclesiastical purposes, as is contemplated in 6 and 7 Vict., cap. 37, sec. 15, and all the provisions of the same shall apply; and then, under that Act, sec. 15, when any Church or Chapel shall be built, etc., such district shall from and after consecration be deemed to be a new parish for ecclesiastical purposes. This, however, did not in terms, it will be seen, deal with the present question, and appeared to leave it open, and so it will be seen it was discussed in the alternative on the ground that at common law Churchwardens must be resident, and that is not altered by one Act, and is re-enacted in the other. However, in the present case it appeared that it had not been so understood, and on April 25, 1889, when, at Easter, two Churchwardens were chosen for the new district parish of Christ Church, Beckenham, one of them was a gentleman who had been chosen in previous years, and who is not a resident, though he is a rated occupier in the parish. The gentleman in question, a Mr. Matthews, was elected by a majority of three; no objection was taken at the time, but afterwards his opponent, a Mr. Hayland, desired to raise the objection, and on June 24th last obtained a rule _nisi_ for a _mandamus_ to the vicar to hold a new election of churchwarden on the ground that the election of Mr. Matthews was invalid, as he was not a resident in the parish, he having premises there, a "store" and some stabling for which he was rated, but not living in the parish. The case now came on to be argued.

Mr. Dibden appeared for the applicant.

Mr. Jeune, Q.C. (with Mr. Houghton), appeared on the part of the vicar to show cause.

Lord Coleridge said, in giving judgment, that the party elected was not entitled to hold the office. The effect of the statute was that the new parish was to be treated for all purposes as the old one--that it was to be subject to the same law. Now, it was necessary under the old law that churchwardens should be living in the parish. This gentleman was not so; and therefore was not under the old law "a fit and proper person" to hold the office of churchwarden. The Churchwarden had to discharge various duties which required knowledge of the parish and parishioners. It was said that there were authorities to the contrary in the Ecclesiastical Courts; but speaking of them with the utmost respect, those were ecclesiastical cases, and this was a common law case--that is, a case to be decided by the common law--and he did not think that by the common law a party not living in the parish, and perhaps living at a distance, was qualified to be elected, and, if elected, bound to serve the office of churchwarden. It appeared to be clear, rating would not be enough. It was admitted that there must be some kind of occupation equivalent to actual residence, and in the present case there was nothing of the kind. No doubt the parishioners were glad to have a respectable gentleman to fill the office. No doubt the word "residence" had received under different statutes different interpretations, the sense being necessarily different. Sometimes it meant where a man could be found during the day; sometimes it meant where he slept or lived; and for some purposes perhaps this gentleman might be deemed a resident, but for this purpose it was necessary that he should live in the parish, be acquainted with the parishioners, and thus be able to exercise the duties of his office, which were to be personally exercised. The rule for a _mandamus_ to the vicar, therefore, must be made absolute.

Mr. Justice Mathew concurred.

Rule absolute for a _mandamus_.

From the _Times_, Nov. 29th, 1889.

APPENDIX II.

7 Gul. IV, and 1 Vict., cap. 45, sec. 3.

Be it further enacted that no such notice of holding a Vestry shall be affixed on the principal door of such Church or Chapel unless the same shall previously have been signed by a Churchwarden of the Church or Chapel, or by the Rector, Vicar, or Curate of such parish, or by an Overseer of the Poor of such parish; but that every notice so signed shall be affixed on or near to the principal door of such Church or Chapel.

APPENDIX III.

58 Geo. III, cap. 69, 3rd June, 1818. _An Act for the Regulation of Parish Vestries_.

Sec. 2.--For the more orderly conduct of Vestries be it further enacted that in case the Rector, or Vicar, or perpetual Curate, shall not be present the persons so assembled in pursuance of such notice shall forthwith nominate and appoint, by plurality of votes to be ascertained as hereinafter is directed, one of the inhabitants of such parish to be the Chairman of and preside in every such Vestry; and in all cases of equality of votes upon any question arising therein the Chairman shall, in addition to such vote or votes as he may by virtue of this Act be entitled to give in right of his assessment, have the casting vote; and minutes of the proceedings and resolutions of every Vestry shall be fairly and distinctly entered in a book, to be provided for that purpose by the Churchwardens and Overseers of the Poor, and shall be signed by the Chairman and by such other of the inhabitants present as shall think proper to sign the same.